Defendants: Human Beings or Just Another File?

Posted By Shane Phelps || 17-Nov-2013

In the years I worked as First Assistant District Attorney in Brazos County,
I had many discussions about the philosophy of prosecution with my boss,
the elected district attorney. We agreed about most things, but sometimes
differed on fundamental approaches to prosecution. I was the first assistant
and he was the boss, and so his philosophy guided the office and I, of
course, deferred to his approach as was my duty as his assistant. I came
to the Brazos County District Attorney’s Office, at my former boss’s
invitation, with an already well-developed philosophy about prosecution
and years of courtroom experience, which, I think, is why I appealed to
him. He wanted, he said, another perspective, from someone he knew and
whose opinions he valued. Our relationship was complicated. I am proud
to say, however, that he told me, on many occasions that I dramatically
elevated the professionalism and effectiveness of his office in all the
ways he had hoped.

Over the years, the discussions we had were thoughtful and often animated,
even heated. Some lasted hours and others carried over for days. One issue
we discussed many times, and upon which we fundamentally disagreed, was
whether the personal circumstances of individual defendants should be
considered in the disposition of criminal cases.

His approach was that prosecutors, in determining the appropriate disposition
of a given case, should look only to the offense committed and the facts
of a particular case. He believed that trying to take into account the
particular personal circumstances of a defendant would lead, inevitably,
to disparate treatment of similarly-situated defendants. Take for instance,
two defendants who are charged with the same offense, possession of a
controlled substance. One is a high school dropout working at McDonald’s;
no criminal history and charged with possessing cocaine. The other defendant
is an honors student in college with a dream to enter the military and
fly jets; this one charged with possessing one pill of Adderall a friend
gave him to help him study. Both cases are state jail felonies. In the
latter case, any disposition on a felony level, even a deferred adjudication
probation, disqualifies the defendant from entering the military and ever
flying jets. Should the cases be resolved differently? Should the latter
defendant receive a break and get a misdemeanor disposition while the
other defendant is placed on felony probation?

It’s a difficult question. My former boss’s opinion was that
when you start taking into consideration personal circumstances, such
as the effect a felony probation would have on plans to enter the military
and fly jets, you risk the perception, if not the practical reality, that
the system treats people differently for the wrong reasons, such as race,
socio-economic status, and other impermissible considerations. In the
example I have used, for instance, what if the high school dropout happened
to be black and the college student white?

It is an appealing approach, but I think that it is ultimately the
wrong approach.

I have been a criminal defense attorney for almost three years now. I represent
a lot of college students. I represent a lot of people charged with offenses,
both misdemeanor and felony, who stand to lose everything they have worked
for or everything they have dreamed of because of one moment of bad judgment
or foolish and stupid behavior. I am not talking about repeat or violent
offenders. In my experience, our judicial system is largely populated
by decent, well-intentioned people who have made bad mistakes and, I believe,
based on my prosecution experience, criminal defense attorney experience,
and my own personal experience (see my inaugural blog post for details),
this fact compels a different approach.

I believe that a prosecutor must look at the
individual defendant and his or her personal circumstances, as well as the facts
of the offense they committed. I believe that they should take into account
the impact a given disposition will have on a defendant going forward.
It should matter in this calculus how hard one has worked and what they
have achieved; ultimately, what they stand to lose. There is no question
that certain offenses, or the manner in which certain offenses are committed,
can overwhelm the personal circumstances of the defendant and render them
irrelevant to the disposition of a case. But, for the vast majority of
defendants, especially those charged with misdemeanors, it is appropriate,
if not necessary to the proper administration of justice, to consider
the individual defendant in deciding how to dispose of a case.

I readily admit that the approach that only takes into account the facts
of a given case and the offense committed is the easier and safer path.
The approach I advocate requires a thoughtful and dedicated prosecutor
vigilantly examining each case and each defendant for the opportunity
to make a positive impact, while balancing these considerations against
the safety of the community, the welfare of any victim, and the ends of
justice. It’s hard work, but it makes for a better and more just system.

I believe, also, that this approach is the legally correct one. Consider
this passage from the Texas Penal Code:

Pen. §1.02 Objectives of Code

The general purposes of this code are to establish a system of prohibitions,
penalties, and correctional measures to deal with conduct that unjustifiably
and inexcusably causes or threatens harm to those individual or public
interests for which state protection is appropriate. To this end, the
provisions of this code are intended, and shall be construed, to achieve
the following objectives:

(1) To insure the public safety through:

(A)
The deterrent influence of the penalties hereinafter provided;

(B)
Therehabilitation of those convictedof violations of this code; and

(C)
Such punishment as may be necessary to prevent likely recurrence of criminal behavior;

(2)
By definition and grading of offenses to give fair warning of what is prohibited
and of the consequences of violation;

(3)
To prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among
individual offenders;

(4)
To safeguard conduct that is without guilt from condemnation as criminal;

(5)
To guide and limit exercise of official discretion in law enforcement to
prevent arbitrary or oppressive treatment of persons suspected, accused,
or convicted of offenses; and

(6) To define the scope of state interest in law enforcement against specific
offenses and to systematize the exercise of state criminal jurisdiction.

There it is, in black and white:
“recognition of differences in rehabilitation possibilities among
individual offenders.” Sometimes you just have to go back to the source to be reminded of what
is important.

Our legislature has made it pretty clear that our penal system, among other
important considerations, is intended to encourage the recognition by
prosecutors, judges, law enforcement officers, and criminal defense attorneys,
of different rehabilitative needs of individual defendants in crafting
appropriate dispositions of a criminal cases.

Prosecutors wield enormous, potentially life-altering power. In my experience,
too many prosecutors take the easy approach: if it lands on my desk, my
job is to get the heaviest sanction possible out of the case. The problem
with that approach is that it is contrary to a prosecutor’s oath
to do justice; it is contrary to the legislature’s intent in enacting
the Penal Code; and it’s lazy. My greatest frustration as a criminal
defense attorney is dealing with a prosecutors who see prosecution as
just a job and don’t really care about the individual citizen accused.
Thankfully, there are many prosecutors who really do go the extra mile
to make sure that the right thing happens in a given case. That’s
when the justice system works real justice. And a careful and thoughtful
prosecutor can make a real difference in the lives of good people who
make mistakes.

At the end of the day, prosecutors just need to remember, and appreciate,
that they are dealing with human beings, not just files.